By judgement of 21 June 2012 (docket no. 8 AZR 364/11), the Federal Labour Court (BAG) has ruled that false or contradictory information given by an employer regarding the reasons for a negative personnel decision can be an indication of a discrimination against the employee on grounds of ethnic origin.
The case for decision by the BAG was a complaint filed by a plaintiff born in Turkey whose fixed-term employment contract had not been prolonged, whereas a comparable employee of German origin had been offered an indefinite employment relationship by the employer. The employer based its decision against the plaintiff on performance deficiencies, despite having given her a reference in which it qualified her work as being "to our utmost satisfaction" ["zu unserer vollsten Zufriedenheit"].
In this connection the BAG states that the reasons underlying the employer's measure must be correct. An evidently false or contradictory reason could be considered an indication of a discrimination. Since the factual situation had not been conclusively clarified by the prior instance, the BAG referred the dispute back to the Regional Labour Court [Landesarbeitsgericht, LAG] of Rhineland-Palatinate.
With its decision on the presumption of a discrimination in case of a deficient justification of personnel decisions, the BAG concurs with a judgement of the European Court of Justice (ECJ) dated 19 April 2012 (docket no. C-415/10). This was to be expected, since the ECJ's decision in April 2012 was based on a comparable issue that is still pending before the BAG. The ECJ had decided that, although a rejected job applicant cannot fundamentally demand an inspection of the job application documentation of the hired candidate from the employer in order to prove his own (purported) discrimination on grounds of ethnic origin, the ECJ considered the withholding of any and all information about the hired job applicant and the reasons for the rejection to be factor which could be appraised as an indication of a discrimination within a comprehensive overall consideration of the matter.
However, once the presumption of a discrimination on grounds of ethnic origin or a characteristic that is frowned upon pursuant to the German General Non-Discrimination Act [Allgemeines Gleichbehandlungsgesetz, AGG] has been raised, experience has shown that it is difficult for the sued employer to successfully avert damage and/or compensation claims.
For employers, the judgements of the ECJ and BAG will mean considerably more work and greater sensibility in their handling of personnel decisions. Firstly, it is no longer sufficient to reject a job applicant without giving a reason. Secondly, the reasons must be correct or at least in line with the employer's usual conduct.
The BAG decision is presently only available in the form of the
press release; we will have to wait and see whether the grounds for
the BAG's judgement stipulates further requirements as to the
scope and content of an employer's justification of a negative
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